I have given quite a lot of thought to this issue and have recently set out my thoughts on the issue as part of a chapter I am writing on the classification of armed conflicts. The chapter is part of a project on Classification of Conflicts being undertaken under the auspices of the International Law Programme at Chatham House. The project is led by Elizabeth Wilmhurst and includes distinguished academics and practitioners of international humanitarian law (mainly on this side of the Atlantic). Members of the group include Michael Schmitt (now at the US Naval War College), Jelena Pejic at the ICRC, Professor Francoise Hampson (Essex University), Professor Iain Scobbie (SOAS) and Dr Noam Lubell (now also at Essex). I am a member of the group. Each of us is tasked with writing a chapter and most chapters deal with issues relating to the classification of particular conflicts (eg Iraq, Afghanistan, Gaza, Lebanon, Colombia, DRC, Al Qaeda). However, some of the chapters deal with general conceptual issues. We have had several delightful meetings at Chatham House to discuss and revise our chapters. Earlier this year, we also held a weekend workshop in Oxford (hosted by the Oxford Institute for Ethics, Law and Armed Conflict). My own chapter seeks to provide a general overview of the legal concepts relevant to classification. The chapter (and indeed the result of the entire project) are not yet published but should be soon. We expect the essays to be collected in a book on Classification of Conflicts. In my chapter, I deal with the history of the distinction between international and non-international armed conflict, the consequences of the distinction and whether it still has validity. The chapter then discusses legal concepts relevant to the two categories, including the differences between a non-international conflict and other violence and conflicts in which UN ‘blue helmets’ are engaged. I conclude with a discussion of extraterritorial conflicts between States and non-State groups.

Those who have read our earlier discussions will know that my view is that where a State uses force against a non-State group on the territory of another State, without the consent of that latter State, the State using force is bound by the law applicable in international armed conflicts. In summary, the use of force by one State on the territory of another, without the consent of the latter leads to an international armd conflict between the two States. Also that conflict is inextricably linked with any conflict with the non-State actor such that the State using force will have to follow the law applicable in international armed conflicts. In my draft, I provide a sustained defence of this position and how it accords with international practice. I also show how the position has the support of most international tribunals. The relevant section of my draft chapter now follows. I invite your comments.

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8. Extraterritorial Conflicts with Non-State Armed Groups

There are many situations in which a State (the foreign State) will use force on the territory of another State (the territorial State) but where that force is not primarily directed at the territorial State but rather is directed at a non-State armed group based in that State. Examples drawn from the case studies considered in this work include the use of force by Israel in Lebanon in 2006, acts by Uganda and Rwanda in the Democratic Republic of the Congo, Columbia attacks on the FARC in Ecuador in 2008 and US targeting of persons connected with Al Qaeda in countries such as Yemen, Somalia and Pakistan. Several other examples may be given, such as the Turkish use of force directed at PKK targets in Northern Iraq. In most of these cases, the attack by the State on a non-State group abroad represents an extension of a pre-existing conflict within the foreign State between the foreign State and the non-State group. It may be that the foreign State is pursuing the non-State group across an international border in order to deny the group cross border refuge. In other cases, though more rarely, the non-State group is primarily based within the territorial State but has engaged in cross border attacks on the foreign State or is otherwise deemed to be a threat to the security of the foreign State.

It is possible that despite the use of force by a State against a non-State group, the level of violence does not cross the threshold of an armed conflict.[163] However, where it does one question that arises in all of these situations is how the distinction between international and non-international armed conflicts applies to these transnational or transborder conflicts. At one level, the distinction appears to be an imperfect fit. The hostilities in question do not engage the armed forces of two States and are thus factually different from the quintessential international armed conflicts (which are, of course, inter-State conflicts). On the other hand, though the hostilities and other acts are between a State and a non-State group they are not internal to the foreign State or to any particular State. There is, as a matter of fact, an international element to the conflict. Furthermore, both Common Article 3 and Additional Protocol II, dealing with non-international armed conflict, appear, on their face, to confine such conflicts to the territory of one Contracting Party. Common Article 3 speaks of an “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties” (emphasis added) and Article 1(1) of APII refers to an armed conflict “which take[s] place in the territory of a High Contracting Party”.

As a result of these apparent incongruities between the facts and the law, some have suggested that IHL ought to recognize a new and different form of armed conflict which takes account of the transnational aspects of these conflicts but which also recognizes that the conflicts in question are conflicts between States and non-State groups.[164] This approach has not found much favour and has been rejected by other scholars who have sought to apply IHL, as it exists, to the conflict between the State and the non-State group. This approach requires, first, examining whether the violence between a State and a non-State group is an ‘armed conflict’ and secondly, making a determination as to how to fit it into the international or non-international dichotomy.[165]

Some writers who take this latter approach have come to the conclusion that conflicts involving the use of force by a State against a non-State group on the territory of another State are non-international armed conflicts where the force is directed solely at that non-State group.[166] This is also the view of the majority of contributors to the present book. These writers argue, correctly, that the wording of Common Article 3, referred to above, does not prevent a non-international armed conflict from straddling more than one State. Indeed those who take this view note that the reference to one of the High Contracting Parties was simply a reference to the fact that this provision in the Conventions only applies where fighting occurs in the territory of, at least, one party to the Conventions, without an intention to confine the application of Common Article 3 to situations where fighting occurs solely within the territory of only one of the parties.[167] It is further argued that the classification of the conflict as non-international follows from the fact that the opposing parties are not two States but rather a State and a non-State group. It is said that classifying such a conflict as international would not only be contrary to the party structure of international armed conflicts, but also that:

Non-state actors would be unable to comply with many of the international armed conflict provisions, and states would be unwilling to grant non-state actors immunities from prosecution granted to prisoners of war in conflicts of this type. The rules of non-international armed conflict are precisely designed for conflicts in which one of the parties is a non-state actor.[168]

It may well be that a conflict between a State and a non-State group is not to be regarded as an international armed conflict in and of itself. However, that contention does not itself resolve the matter under consideration. It is important to recall that the purpose of classification of conflicts is so that one can determine the law which applies to the actions of participants in the conflict. Therefore, the essential question in such a case is which law applies to the conflicts between a foreign State and a non-State group that occurs in the territorial State. Where the conflict between the foreign State and the non-State group is inextricably bound up with another conflict (notably a conflict between two States) such that acts under the two conflicts (to the extent the conflicts can be distinguished) cannot be separated, the participants will, in reality, be bound to observe the law of international armed conflicts.

In the view of this author, the law that governs transnational conflicts between a State and a non-State group will depend, in the first place, on whether the territorial State in which the non-state group is based has given its consent to the foreign State using force against that group. Where such consent exists, then the conflict will be governed by the law of non-international armed conflicts. The situation here will be no different from a situation in which the territorial State is itself fighting the non-State group and invites the foreign State to intervene. The consent of the territorial State has the effect that there are not two opposing States involved in the conflict.[169]

Irrespective of the consent of the territorial State, there are at least two situations where, applying our earlier analysis, a transnational conflict between a State and a non-State group will be governed by the law of international armed conflicts. First of all, where the non-State group belongs to, or acts on behalf of a State (other than the intervening foreign State) a conflict between that non-State group and the foreign State will be an international armed conflict because there will be two opposing States. Therefore, it may be considered whether Hezbollah was to be regarded as belonging to Lebanon (or indeed to a third State) in the 2006 conflict with Israel. If it was,[170] then the conflict was international. Secondly, where a State occupies a foreign State, in order to act against a non-State group, or as a result of a conflict with a non-State group, then the actions of the occupying State during the period of occupation will be governed by the law of occupation and other rules relating to international armed conflicts. This follows from our earlier analysis[171] and was the position adopted by the International Court of Justice and the International Criminal Court with respect to Uganda’s occupation of Ituri province in the Democratic Republic of Congo.[172]

Most controversy in this area centers around the cases where a foreign State fights against a non-State group in the territorial State but without the consent of the territorial State. In the view of this author, and contrary to the views described above, in such circumstances, there will be an international armed conflict between the foreign State and the territorial State. This will be the case because the use of force by the intervening foreign State on the territory of the territorial State, without the consent of the latter, is a use of force against the territorial State. This is so even if the use of force is not directed against the governmental structures of the territorial State, or the purpose of the use of force is not to coerce the territorial State in any particular way. The fact that a use of force on the territory of another State (even if directed against non-State groups) without its consent is a use of force against the territorial State in breach of obligations to it can be seen from State practice and the jurisprudence of international tribunals. The International Court of Justice in the Armed Activities Case held that:

The Court considers that the obligations arising under the principles of non-use of force and non-intervention were violated by Uganda even if the objectives of Uganda were not to overthrow President Kabila, and were directed to securing towns and airports for reason of its perceived security needs, and in support of the parallel activity of those engaged in civil war.[173]

The Court further concluded that “[t]he unlawful military intervention by Uganda was of such a magnitude and duration that the Court considers it to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the Charter.”[174] It should be recalled that Article 2(4) prohibits uses of force against the territorial integrity or political independence of other States. Similarly, when Columbia attacked FARC forces in Ecuador in March 2008, the Organization of American States adopted a resolution stating the use of force had violated the territorial sovereignty of Ecuador. More generally, when States use force abroad, even against non-State groups, they routinely invoke Article 51 of the UN Charter.[175] Article 51 is an exception to Article 2(4) and invocation of that Article is an acceptance that Article 2(4) is engaged and that absent Article 51, the use of force would be against the territorial integrity of another State.

Given that a use of force by one State on the territory of another, without the consent of the latter, is a use of force by the foreign State against the territorial State, a situation of armed conflict between the two automatically arises. An international armed conflict is no more than the use of armed force by one State against another. As Greenwood has stated, “[a]n international armed conflict exists if one State uses force against another State.”[176] To state otherwise is to assert that there can be an armed contention between States, possibly even an act of aggression by one State against another but that this is not covered by the rules which international law has designed to regulate such contentions between States. It matters not (and ought to matter not) whether the territorial State responds by using force against the foreign State. Common Article 2 to the Geneva Conventions makes it clear that the Conventions apply even if one of the parties does not acknowledge a state of war. It is also irrelevant to the existence of a state of international armed conflict whether the targeted entities are part of the governmental structure of the State or whether the purpose of the use of force is to affect the government of the State where force is being used. In the first place there is a distinction between a State and a government. International armed conflicts are conflicts between States. A government is but one part of a State. A State is also made of people and territory in addition to a government in control of the territory.[177] Secondly, it would be difficult to discern what is meant by the governmental infrastructure of a State and no uniform answer can be given to that question. Whether airports, sea ports, electricity-generating plants, roads, bridges etc are owned by the government of a State, or by private parties (as is the case in some countries) will depend on the economic approach adopted by that particular country. None of these things are intrinsically governmental. Thirdly, and most importantly, to attempt to distinguish between force directed at a non-State group and force which has as its overall purpose the intention to influence the government of the State is to condition the application of IHL on the mental state or motive of the attacker. It is to suggest that the very same acts of force directed by one State against the territory of another State would yield different legal results depending on the intention of the intervening State regarding whom it seeks to affect. The protections afforded to the civilian population and to the infrastructure of the territorial State ought not to depend on the motives of the foreign State. Additionally, this idea is problematic as the mental state or motive of the foreign State may not be easily discernible. What is important are the objective facts, which are: that force is being used by one State against another State (i.e on its territory and without its consent).

The view that any use of force by a State on the territory of another without the consent of the latter brings into effect an international armed conflict between the two States has some support from scholars, [178] though it is probably not the majority view in the existing literature and, as noted above is not the view of the majority of the authors of this book. However, this view has the support of the international tribunals that have had occasion to consider the matter. First one may recall Judge Shahabuddeen’s statement in the Tadic Case that whether there was an international armed conflict depended on whether the Federal Republic of Yugoslavia was using force against Bosnia.[179] In his view, all that needed to be shown was the use of force by one State against another for an international armed conflict to come into being. Secondly, the International Court of Justice’s opinion in the Armed Activities Case supports the view taken here. The Court applied the law of international armed conflicts (the Geneva Conventions and Additional Protocol I) to the activities of Uganda in the Democratic Republic of the Congo and even to acts of Uganda outside the province of Ituri, which was held to have been under Ugandan occupation. The Court’s decision was implicitly based on the view that there was an international armed conflict between Uganda and the Democratic Republic of the Congo, despite the fact that Uganda was in the territory of the Democratic Republic of the Congo primarily to fight non-State groups.[180] In the Targeted Killings case, the Israeli Supreme Court also took the view that “an armed conflict of international character [is] . . . one that crosses the borders of the state – whether or not the place in which the armed conflict occurs is subject to belligerent occupation.”[181]

That an international armed conflict exists where a State uses force against a non-State group on the territory of another State without the consent of the latter State was also confirmed by the UN Commission of Inquiry into the conflict in Lebanon in 2006.[182] The Commission was of the view

“that hostilities were in actual fact and in the main only between the IDF and Hezbollah. [However] The fact that the Lebanese Armed Forces did not take an active part in them neither denies the character of the conflict as a legally cognizable international armed conflict, nor does it negate that Israel, Lebanon and Hezbollah were parties to it.”’[183]

One of the points emphasised by the Commission in reaching this finding was that:

“the State of Lebanon was the subject of direct hostilities conducted by Israel, consisting of such acts, as an aerial and maritime blockade that commenced on 13 July 2006, until their full lifting on 6 and 8 September 2006, respectively; a widespread and systematic campaign of direct and other attacks throughout its territory against its civilian population and civilian objects, as well as massive destruction of its public infrastructure, utilities, and other economic assets; armed attacks on its Armed Forces; hostile acts of interference with its internal affairs, territorial integrity and unity and acts constituting temporary occupation of Lebanese villages and towns by IDF.”[184]

Indeed both Israel and Lebanon were of the view that the conflict was international despite the fact that Israeli action was primarily directed at Hezbollah and despite the fact that Lebanese armed forces did not respond in the conflict.[185]

The only judicial decision that appears to take a contrary view is the Hamdan decision of the US Supreme Court.[186] In that case the Court stated that Common Article 3 applies to persons detained by the US in connection with action taken against Al-Qaeda. The reasoning of the US Supreme Court in this part of the decision is rather confusing and it is not at all clear that it reaches the conclusion that there is a conflict with Al-Qaeda which is of a non-international character. There are two ways of reading the Hamdan decision. One is that the Court applied Common Article 3 because it considered the conflict to be non-international. The other way to read it is that the Court was simply saying that Common Article 3 applied, at a minimum, to the conflict with Al-Qaeda. The US government had argued before the Court in that case that, firstly, it was engaged in a conflict with Al-Qaeda which was separate and distinct from the conflict in Afghanistan, and, secondly, that the conflict with Al-Qaeda was not an armed conflict to which the full Geneva Conventions applied. The Court responded by saying that:

We need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories. (emphasis added)[187]

Since the Supreme Court also quoted that part of the International Court of Justice’s decision in the Nicaragua Case, which held that Common Article 3 applies as a minimum even in international armed conflicts,[188] its decision is not decisive as to the classification of the conflict with Al-Qaeda, to the extent there was a separate conflict at all.[189]

Even if there is an international armed conflict between an intervening foreign State and a State on whose territory a non-State group is based, it might be argued that this has no bearing on the conflict between foreign State and the non-State group as that conflict would be non-international and there would be two conflicts running in parallel. The relationship between the foreign State and the non-State group would be governed by the law of non-international armed conflicts.[190] However, the important point here is that the conflict with the non-State group will be so bound up with the international armed conflict between the two States that it will be impossible to separate the two conflicts. With respect to the conduct of hostilities and targeting in general, every act of targeting by the foreign State will not only be an attempt to target the non-State group (or members thereof) but will also at one and the same time be a use of armed force against the territorial State because it is a use of force on that State’s territory without its consent. This means that every act of targeting or opening fire must comply with the law of international armed conflicts.

With regard to detention and the status of combatants, one anxiety that is expressed by some authors is that saying that there is an international armed conflict between a State and non-state group would imply that fighters of the non-State group have combatant immunity or are entitled to POW status. However, this conclusion does not follow from the assertion that the foreign State is involved in an international armed conflict with the territorial State and that such hostilities are bound up with those against the non-State group. It is one thing to assert that the law of international armed conflict applies; it is another thing to see how that law applies. Applying the law of international armed conflict would not grant combatant immunity or indeed prisoner of war status to fighters from the non-State group, as they would not, in practically all cases, fulfil the criteria for these statuses. In the first place, the fighters being considered here would not, by definition, fight on behalf of the State or belong to it as we are only speaking of cases where the territorial State (or another State) is not involved in the hostilities directly or indirectly. If the fighters of the non-State group do belong to another State, the conflict would unquestionably be international. Secondly, they will usually not fulfil the other criteria for POW status.

However, questions remain as to whether members of that non-State group should be entitled to the benefits that the rest of the population are entitled to. In particular, if they are detained should they be accorded the protections to which civilians are entitled under the Fourth Geneva Convention? The answer to this question depends, first of all, on the applicability of the Fourth Geneva Convention to persons who take part in hostilities but who are not entitled to prisoner of war status.[191] Views on this are divided but the better view is that such persons, provided they fulfil the nationality criteria in Article 4 of that Convention, are, in principle, entitled to such protections as are provided for in the Fourth Geneva Convention, subject to possible limitations imposed in accordance with Article 5 of that Convention.[192] The next question would be whether the rules relating to detention apply given that those rules are restricted to protected persons in the territory of the belligerent and in situations of occupation. In the absence of a belligerent occupation, it may be asserted that battlefield unprivileged belligerents are not covered by those parts of the Fourth Geneva Convention relevant to detention.[193] Apart from these questions, in principle, there is no reason why persons in the territory where the conflict takes place should be deprived of protections that they ordinarily enjoy with regard to a foreign force. If a person were to be picked up the Foreign State and detained, it is impossible to see how the person’s status as a civilian in the international armed conflict should be superseded by a claim that the person is a fighter in a non-international armed conflict. Such persons are protected persons under the Geneva Conventions and do not lose that status because they may have engaged in acts that are hostile to the foreign State.

So to summarise, the law that applies to transnational conflicts between a foreign State and a non-State group is the law of international armed conflicts where the foreign State intervenes without the consent of the territorial State. This application of the law of international armed conflict is consistent with the underlying reasons for the distinction between international and non-international armed conflicts. In the case of conflicts with non-State groups on the territory of another State, there is little reason to have the more limited regulation of non-international conflicts as the conflict is not an internal matter. The sovereignty and State autonomy reasons that are used to justify having more limited regulation of non-international armed conflicts do not apply where the State is acting outside its own territory. Deference to the sovereignty of the foreign State ought not to apply where that State acts outside its territory, as the sovereignty and autonomy of the territorial State are now also in issue. Importantly, the territorial State has interests at stake: interests in the protection of its territory and of its civilian population and infrastructure.

[169] See the discussion on Foreign Intervention on the side of the territorial State around n. 129 above. See also Fleck, n. 29 above, 608: “It is suggested that the non-international or international character of an armed conflict depends on the question whether or not a responsible territorial government has given its consent to military operations performed by the intervening State. Under the Wesphalian system armed conflicts can be determined as international only in a case in which states . . . are involved as parties to the conflict.”

[189] It is worth noting that the position of the Obama administration is that the US is involved in an armed conflict with Al Qaeda, but it does not state explicitly that this is a non-international conflict. However, reference is made to Common Article 3 which indicates that the US believes the conflict is a non-international conflict, see Koh, “The Obama Administration and International Law”, Speech by Harold Koh to the American Society of International Law, March 2010, http://www.state.gov/s/l/releases/remarks/139119.htm. See also, In Re: Guantanamo Bay Detainee Litigation, Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to Detainees held at Guantanamo Bay, March 2009, http://www.justice.gov/opa/documents/memo-re-det-auth.pdf, where there is similar ambiguity regarding the classification of the conflict (but where the US administration seeks to draw from the law of international armed conflicts).

6 Responses

Comment: I would expect the author to deal ex professo also with the present Kenya – Al Shaabab conflict in the area of what once was – but no longer is – the state of Somalia. Kenya officially calls it a “war” strictiori sensu, and invokes article 51 as justification.

In practice however, this is not a war, and not conceived as such, but a “punitive expedition”, as in olden colonial times. Natives from the unruly and savage regions of the North, without the law, have invaded the Northeastern Frontier District, and the “thin red line” now moves in to punish them and teach them a lesson (not my words, but almost literally the Government of Kenya – and red is still their parade uniform).

The query how to handle this is, in my opinion, not only quite different from the oft-debated question of state terrorism and state counter-terrorism and no-longer-covert executions of Foreign Enemies of the State, which occupy so many columns in law blogs. But also from the incursion into the territory of a really existing (but weak) state, consented, force-consented or unwilling.

regarding the internationalization of armed conflicts and the fact that states should recognize that whenever they send their armed forces into a fight in a foreign state, even with the consent of the foreign state, that the conflict has been internationalized (so that their military personnel can rightly be recognized as “combatants” with “combatant immuninty” for lawful acts of war, please see Self-Defense Targetings of Non-State Actors…. at page 261 — get a free download at http://ssrn.com/abstract=1520717
Our International Criminal Law casebook (3 ed. 2007) addresses such at pages 645, 662 — casebook can be ordered for your library from http://www.cap-press.com {Paust, Bassiouni, et al., International Criminal Law}

Jordan, what we are seeing here are *legal plate tectonics*. Only that the overlapping plates in this case (tensions, quakes and all that…) are not spatial plates (id est, different legal system, or different dogmatic paradigms), but *temporal* plates.

The Kenyan military incursion into a Somalian region (the one existing Somali state, called “Somaliland”, is not affected) belongs to a much older legal plate, and is conceived exactly what was generally called a “punitive expedition” in the past, and not a “war”, for numerous reasons, many of them indeed legal.
The other legal plate, touching it and overlapping, is a much newer one, and is characterised by such events as state action against single (personal) targets, which have been much discussed here; but also by the query which you now importantly raise, namely about liability and combat immunity of the actors, and whether such concepts from the classic laws of war can be analogously transferred and applied to some non-war situations. The alternative to the legal analogy is painting the punitive expedition with tiger stripes on its hyena fur, and then calling it a “tiger”.

The study of the Herero conflict in German South-West-Africa shows that the same issues arose and were seen as grave already in the past, but were at the time resolved politically (through massive intervention of the imperial parliament), not by national judicial review or invoation of international law of armed conflict, which was seen as not applicable.

Well, under traditional international law, a state can be at war or in an armed conflict with a state, nation, or belligerent, and under more modern times, with an insurgent. So status of the folk can be important re: whether there is an armed conflict and, if it exists, how it should be classified, e.g., international because it is across borders.
IF one is at peace and engaged in permissible self-defense targetings of non-state actor attackers, my suggestion has been that general patterns of practice regarding such targetings and apparent opinio juris in response has been that civilians, for instance, who engage in such measures and military who do so have not generally and should not be prosecuted — that there is an implied immunity of the participants in lawful measures of self-defense. This is a hot issue re: CIA use of drones to target persons in a theatre or war and outside the context of war, i.e., whether they have an implied immunity (see my Self-Defense article, http cite noted above, at page 277-79) since they are not “combatants” with “combatant immunity” even in the context of a real war in Afghanistan and parts of Pakistan (my view has been the the U.S. cannot be at “war” with al Qaeda as such, since it does not meet the test for belligerency, insurgency, or Geneva Protocol II, art. 1, or, arguably, even the non-customary preference articulated in Tadic).

Laws designed to monitor state-to-state conflicts should apply to conflicts involving non state actors in an extraterritorial armed conflict. I thought International Human rights law was always applicable in such situations especially if there are civilian causalities.

About the Author(s)

Dapo Akande

Dapo Akande is one of the editors of EJIL:Talk!. He is Professor of Public International Law at the University of Oxford and Yamani Fellow of St Peter's College, Oxford. He is Co-Director of the Oxford Institute for Ethics, Law & Armed Conflict, and also of the Oxford Martin Programme on Human Rights for Future Generations. Dapo is a member of the Editorial Board of the American Journal of International Law, an Emeritus Editor of the European Journal of International Law; and a member of the advisory board of several other journals. He is a Counsellor of the American Society of International Law, a Trustee of the British Institute of International and Comparative Law and a member of the Africa Group for Justice and Accountability. Read Full